Simko v. Miller
| Decision Date | 16 March 1938 |
| Docket Number | 26694. |
| Citation | 13 N.E.2d 914,133 Ohio St. 345 |
| Parties | SIMKO v. MILLER. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The omission by a court to define or explain doubtful words or phrases, contained in a statute set forth in a special instruction to the jury, does not constitute prejudicial error unless a definition or explanation was requested by the party complaining.
2. A special instruction is not erroneous simply because it employs the phrase 'if you find' but omits reference to the required degree of proof. (Proposition two of the syllabus in Hunter v. Brumby, 131 Ohio St. 443, 3 N.E.2d 353, approved and followed.)
3. Under the provisions of Section 11560, General Code (116 Ohio Laws, 104), erroneous statements of law in a charge, not induced by the complaining party, can be reviewed without exception being taken to the charge.
4. Where contributory negligence is an issue, a charge that if the parties 'failed to observe the duties imposed upon them in the exercise of ordinary care,' such failure would be negligence, is prejudicial to a defendant, if the court fails to differentiate between a violation of the duties imposed by common law and those imposed by statutes the violation of which is negligence per se.
5. In submitting a case to the jury, it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as to each issue as the nature of the case may require. (Baltimore & Ohio R. Co. v. Lockwood, 72 Ohio St. 586, 74 N.E. 1071, approved and followed.)
Edward Simko, as plaintiff, instituted this action to recover for personal injuries and damage to his automobile, against Tony Miller, defendant, as a result of alleged negligence on the part of Miller in causing a collision of their automobiles on August 22 1934, on state highway No. 18 near Austintown in Mahoning county. Miller filed an answer denying he was negligent and setting up a claim of contributory negligence. In a cross-petition, Miller prayed for damages from Simko on the ground that he suffered injuries due to Simko's negligence.
Act the first trial the jury was unable to agree and was discharged. At the second trial the jury returned a verdict in favor of Simko for $10,000, which was nearly the full amount prayed for in the petition. The verdict was rendered on February 7, 1936, and judgment entered thereon on September 30, 1936.
Miller prosecuted an appeal to the Court of Appeals, and the judges not being able to agree upon any ground of reversal, affirmed the judgment because 'in its opinion substantial justice has been done to the party complaining as shown by the record of the proceedings and the judgment under review.'
An opinion was rendered by Judge Carter of the Court of Appeals in which the following conclusions are set forth:
'Carter J., finds error in giving plaintiff's request numbered three before argument; Nichols and Roberts, judges, find no error in this respect.
'Roberts, J., is of opinion that the cause should be reversed for error of the trial court in failing to give a more full and complete charge after argument, to which Nichols and Carter, judges, do not agree.
'This cause is, therefore, necessarily affirmed for the reason that a majority of the court can not concur upon a ground of reversal.'
The case is before this court upon an allowance of a motion to certify the record.
Peter B. Betras and I. Freeman, both of Youngstown, for appellee.
Henderson, Wilson, Wyatt & Ranz, of Youngstown, for appellant.
All of the alleged errors presented in argument and in the briefs pertain to two special charges and the general instruction given to the jury by the trial judge.
Previous to the waiver of oral argument, the court gave to the jury plaintiff's first request to charge, as follows:
'The court says to you as a matter of law that no person shall operate a motor vehicle in and upon the public roads and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the road or highway, and of any other conditions then existing, and no person shall drive any motor vehicle in and upon any public road or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.
'It shall be prima facie unlawful for any person to drive a motor vehicle at a speed to exceed forty-five miles per hour on highways outside of municipal corporations.' (Italics ours.)
This charge is in almost the exact language contained in Section 12603, General Code, as effective at that time (113 Ohio Laws, 283). Ordinarily it is not only proper but advisable to instruct the jury in the exact language of a statute. This has always been considered good practice because the jury then has before it the language of the Legislature and not some paraphrasing of the section of the Code which may not accurately describe the meaning and intent of the law as enacted.
However, when the statute contains doubtful words or phrases the court should explain them. Certainly, in this instance, the jury might well not have understood the meaning of the term ' prima facie.' While the jurors are presumed to know the ordinary words of the English language, there is no presumption that they know and understand words of foreign derivation. No attempt was made to define the words in either the special or general instructions of the court. However, it has been held that 'the omission of a court, in its charge to the jury, to define or explain doubtful words or phrases contained in a statute upon which the action is founded, does not constitute a ground of reversal, unless such definition or explanation was requested by the party claiming to have been prejudiced.' Schneider v. Hosier, 21 Ohio St. 98.
Counsel made no request of the trial court to explain any terms, and consequently the giving of the instruction did not constitute prejudicial error.
The court likewise granted the fourth request of plaintiff before waiver of argument: 'The court says to you as a matter of law that if you find from all the evidence, that plaintiff Edward Simko was driving his car on his right side of the highway, in the exercise of ordinary care and in a lawful and prudent manner, and you further find that defendant was passing or attempting to pass a vehicle traveling in an casterly direction and you further find that the defendant Miller, drove his automobile on the northerly side of said highway, in doing so, or attempting to do so, and that a collision resulted, and if said action was a proximate or producing cause of said collision your verdict must be for plaintiff, Edward Simko, and against defendant Miller, even though you find that Edward Simko had consumed alcoholic beverages.'
Judge Carter, in his opinion in the Court of Appeals, stated that the charge was erroneous and constituted reversible error 'for failure to insert therein 'by the preponderating weight of all the evidence,'' basing his conclusion upon the ruling in Thomas v. Burks, 120 Ill.App. 222.
This court recently held in Hunter v. Brumby, 131 Ohio St. 443, 3 N.E.2d 353, that an 'instruction is not erroneous simply because it employs the phrase 'if you find,' but omits reference to the required degree of proof.' See, also, Makranczy v. Gelfand, Adm'r, 109 Ohio St. 325, 142 N.E. 688.
In Hunter v. Brumby, supra, 131 Ohio St. 443, at page 445, 3 N.E.2d 353, 354, Chief Justice Weygandt made this pertinent observation: 'Of course in the exercise of an abundance of caution it might be well in each instance to insert phraseology relating to the necessary degree of proof, but this is far from suggesting that the omission so to do is either prejudicial or erroneous.'
Adopting this view, it was not prejudicial to appellant's rights to give plaintiff's special requested instruction No. 4.
We now turn to errors complained of in the general charge of the trial court. Before so doing, it is necessary to determine just how much of that charge can be considered by a reviewing court.
At the conclusion of the court's charge, the record shows the following took place:
'Mr. Bertras: Nothing further to add, your Honor.
'Mr. Henderson: I think, your Honor, in the interest of both sides your Honor should say something to the jury as to the burden of proof.
'Mr. Henderson: Yes, of course it is the duty of the plaintiff by the greater weight of the evidence to show negligence on the part of the defendant, and in order to be fair, on the other hand, it is the duty of the defendant to establish by the probabilities or the greater weight of the evidence negligence on the part of the plaintiff.
'Court: That is right, that is the law and I think I have charged to that effect.
'Mr. Henderson: I am sorry if I interrupted.
'Court: The thirteenth juror may retire and go down to the general assembly room, and the jury may retire in charge of the bailiff.
'Mr. Wilson: Special exception to the remarks about juror No. 1 and juror No. 2; special exception to the refusal to charge on the burden of proof as requested by counsel for defendant.'
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